Information for Care Homes

Mental Capacity Act 2005

It is important that staff who work in care homes have an understanding of the Mental Capacity Act 2005 as it applies to everyone who works in health and social care and who are involved with care, treatment and support of adults aged 16 and above who are unable to make particular decisions for themselves.

The Act provides a legal framework for people who lack capacity. It defines lack of capacity and introduces a clear test for assessing capacity. The Act also sets out the five statutory principles underpinning the Act. It also explains about making a best interest decision and acting in the best interests for people who lack capacity and sets out the best interests checklist that should be applied when working out what is in a person's best interests. The Act also covers protection from liability for staff and introduces two new criminal offences of ill treatment and wilful neglect. The Act introduces Lasting Powers of Attorney, Court of Protection, Advance decisions to refuse medical treatment and the role of the IMCA Service.

The Mental Capacity Act 2005 Code of Practice covers all of the above. The Mental Capacity Act is now a major part of social care and it is important that staff understand and have a working knowledge of the Act. It is also important to have an understanding of the Act in order to have an understanding of the Deprivation of Liberty Safeguards.

Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007 and came into force 01 April 2009. The Deprivation of Liberty Safeguards has its own code of practice which refers to the Mental Capacity Act.

Deprivation of Liberty Safeguards are for people in care homes or hospitals who lack capacity to make decisions around their care needs and where personal freedoms need to be restricted in the person's best interests at a level where they amount to a deprivation of liberty.

Things to take into account when considering Deprivation of Liberty

The managing authority must apply to the supervisory body for an authorisation of a deprivation of liberty if the person who lacks capacity is either about to be admitted to a care home and believes they are at risk of being deprived of their liberty, or they are already resident in the care home and they are being cared for in a way which deprives them of their liberty. The managing authority needs to be able to identify whether a deprivation of liberty is or maybe necessary with regards to a person they are caring for or about to care for.

When considering whether a particular person might need to be deprived of their liberty, the Managing Authority should consider:

If the care or treatment being provided removes the person's freedom to do what they want to do to such an extent that it amounts to a deprivation of their liberty.

That the care and treatment is in the person's best interests.

If the care or treatment could be given in a way that is less restrictive.

In order to consider the above the managing authority needs to try to identify all restrictions / restraints in relation to the person.

Definition of restraint:

use of force - or threaten to use force- to make someone do something that they are resisting, or

restrict a person's freedom of movement, whether they are resisting or not.

(pg17, 2.3) ' The difference between deprivation of liberty and restriction upon liberty is one of degree or intensity. It may therefore be helpful to envisage a scale, which moves from 'restraint' or 'restriction' to 'deprivation of liberty'. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time.'

In order to identify a deprivation of liberty the Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice states:

(pg 18, 2.6) 'In determining whether deprivation of liberty has occurred, or is likely to occur, decision-makers need to consider all the facts in a particular case. There is unlikely to be any simple definition that can be applied in every case, and it is probable that no single factor will, in itself, determine whether the overall set of steps being taken in relation to the relevant person amount to a deprivation of liberty. In general, the decision-maker should always consider the following:

All the circumstances of each and every case

What measures are being taken in relation to the individual? When are they required? For what period do they endure? What are the effects of any restraints or restrictions on the individual? Why are they necessary? What aim do they seek to meet?

What are the views of the relevant person, their family or carers? Do any of them object to the measures?

How are any restraints or restrictions implemented? Do any of the constraints on the individual's personal freedom go beyond 'restraint' or 'restriction' to the extent that they constitute a deprivation of liberty?

Are there any less restrictive options for delivering care or treatment that avoid deprivation of liberty altogether?

Does the cumulative effect of all the restrictions imposed on the person amount to a deprivation of liberty, even if individually they would not?'

Making a Referral

Referrals for a Standard Authorisation must be completed on Department of Health DOLS form 4 (Request for a Standard Authorisation). Details of how to access the form are at the end of this document along with contact details of the DOLS Team and other useful links. Referrals can be by e-mail, fax, and post or delivered by hand. If possible we prefer e-mail. However what is important is that we receive the referral and receive it promptly. There is an example of a good completed request for a Standard Authorisation attached to this booklet. The Request for a Standard Authorisation must be signed by the Managing Authority.

'In the case of a care home or a private hospital, the managing authority will be the person registered, or required to be registered, under part 2 of the Care Standards Act 2000 in respect of the hospital or care home.' (The Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice 3.1, pg29).

'A Managing Authority must request an authorisation when it appears likely, at some time in the next 28 days, someone will be accommodated in its hospital or care home in circumstances that amount to a deprivation of liberty' (The Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice 3:4, pg30).

When the Supervisory Body receives a request for a Standard Authorisation, the Supervisory Body has 21 calendar days in which to complete the necessary assessments and either grant or refuse an authorisation for a deprivation of liberty.

However, if '…the Managing Authority believes it is necessary to deprive someone of their liberty in their best interests before the Standard Authorisation process can be completed, the Managing Authority must itself give an Urgent Authorisation' (The Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice 3:4, pg30).

An Urgent Authorisation is completed on Department of Health DOLS form 1. This authorises the deprivation of liberty for a period of not more than 7 calendar days. At the same time as issuing an urgent authorisation, the Managing Authority must also apply to the Supervisory Body for a Standard Authorisation. If the Managing Authority has given themselves an Urgent Authorisation, the Supervisory Body must complete the assessment process for a Standard Authorisation before the Urgent Authorisation expires. In exceptional circumstances an Urgent Authorisation can be extended for a further 7 calendar days. In this situation the Supervisory Body will liaise with the Managing Authority to advise them to request an extension - completing the Department of Health DOLS Form 2.

When the Team receives a request for a Standard Authorisation, the DOLS Administrator / Coordinator will acknowledge receipt at the earliest opportunity. They will also liaise with you with regards to any discrepancies, queries or further information in relation to the referral.

If we have any doubts about proceeding with the referral, the DOLS Coordinator will seek to resolve them with you.

Assessment Process

The Best Interests Assessor will usually complete the Age, No Refusals, Mental Capacity and Best Interests assessments. They can also complete the Eligibility Assessment if they are also an Approved Mental Health Professional AMHP.

The Mental Health Assessor will usually complete the Mental Health and Eligibility assessment. They can also complete the Mental Capacity Assessment.

6 assessments are usually completed in the Deprivation of Liberty Safeguards process:

Age assessment - The person has to be over 18

No Refusals - To confirm that an authorisation to deprive the person of their liberty does not conflict with any other existing authority such as an advance decision to refuse treatment or any decision made by a donee or deputy

Mental Capacity - To establish whether the person lacks capacity to decide whether or not they should be accommodated. (The person has to be lacking capacity for the assessment to proceed)

Mental Health - To establish if the person has a mental disorder within the meaning of the Mental Health Act1983.

Eligibility - To determine the person's status or potential status under the Mental Health Act 1983. The person is not eligible if they are detained as a hospital in-patient under the Mental Health Act 1983, or the authorisation, if given, would be inconsistent with an obligation placed on them under the Mental Health Act 1983.

Best Interests

Role of the Best Interests Assessor

The purpose of the best interests assessment is to establish, firstly, whether deprivation of liberty is occurring or is going to occur and, if so, whether:

It is in the best interests of the person to be deprived of their liberty

It is necessary for them to be deprived of liberty in order to prevent harm to themselves, and

Deprivation of liberty is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.

In order to establish whether a deprivation of liberty is occurring, or is likely to occur, the Best Interests Assessor will examine any relevant needs assessments and care plans prepared for the person. The Best Interests Assessor will consider whether the care plan and the manner in which it is being, or will be, implemented constitute a deprivation of liberty. If a deprivation of liberty is occurring or is likely to occur, they will complete a full best interests assessment.

(For more details of the assessments please see the Deprivation of Liberty Code of Practice.)

When assessing for a deprivation of liberty the Best Interests Assessor will start with the specific situation of the individual concerned. They will take into account the whole range of factors / restrictions arising out of the situation such as type, duration, effects and manner of the implementation.

The DOLS assessment outcomes

If any of the requirements of the 6 assessments are not met the Supervisory Body cannot give an authorisation and the remaining assessments stop. They will issue the Managing Authority with a Standard Authorisation Not Granted form (form 13), copies of any completed assessments. Copies will go to the person, any consulted interested person and any involved IMCA.

If all the assessments conclude that the person meets the requirements for an authorisation and the Best Interest Assessor is recommending an authorisation, the Supervisory Body will give an authorisation - (form 12). This sets out the decision, the reasons for the authorisation, the length of the authorisation (which cannot be more than 12 months) and any conditions attached to the authorisation. Copies of Form 12 and all six assessments will be given to:

The Managing Authority;

The person being deprived of their liberty;

Any relevant person's representative appointed for the person;

Any IMCA appointed for the person in relation to their deprivation of liberty.

If the Best Interests Assessor concludes that there is a deprivation of liberty or a deprivation of liberty is likely to occur but it is not in the person's best interests, the Managing Authority in cooperation with the commissioner of the care will need to consider how the care plan can be changed to avoid a deprivation of liberty. The Best Interests Assessor will give guidance on how to avoid a deprivation of liberty.

Conditions

(pg57, 4.74) 'The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues, issues relevant to the person's culture or other major issues related to the deprivation of liberty, which - if not dealt with - would mean that the deprivation of liberty would cease to be in the person's best interests. The best interests assessor may also recommend conditions in order to work towards avoiding deprivation of liberty in future. But it is not the best interests assessor's role to specify conditions that do not directly relate to the issue of deprivation of liberty.'

(pg58, 4.75) 'Conditions should not be a substitute for a properly constructed care plan (see paragraph 2.7 on good practice for care planning). In recommending conditions, best interests assessors should aim to impose the minimum necessary constraints, so that they do not unnecessarily prevent or inhibit the staff of the hospital or care home from responding appropriately to the person's needs, whether they remain the same or vary over time. It would be good practice for the best interests assessor to discuss any proposed conditions with the relevant personnel at the home or hospital before finalising the assessment, and to make clear in their report whether the rejection or variation of recommended conditions by the supervisory body would significantly affect the other conclusions they have reached.'

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Monitoring a Standard Authorisation

Following the authorisation of a deprivation of liberty, the Managing Authority must take all practical steps to ensure that the detained person understands the effects of the authorisation and their rights concerning it.
These include their right to challenge the authorisation through local procedures and, ultimately, the Court of Protection - and how this might be done; their right to request a review - and how this can be done; and their right to have an IMCA instructed - and the process for doing this.

Appropriate information should be given both orally and in writing. A similar responsibility to provide this information also exists towards the person's appointed representative.

Provision of information should be seen as an ongoing responsibility, rather than a one-off activity. The Managing Authority also has the duty to monitor the case on an ongoing basis to see if anything changes in the person's situation which may result in them no longer needing to be deprived of their liberty.

Reviews

(pg86) 'The managing authority must set out in the care plan clear roles and responsibilities for monitoring and confirm under what circumstances a review is necessary. For example, if a person's condition is changing frequently, then their situation should be reviewed more frequently.'

The supervisory body carries out the review and has to consider a review if any of the following:

relevant person,

the relevant person's representative

section 39A IMCA representing the person
request a review. The managing authority must also inform the supervisory body if there has been a change in the person's situation especially if the change means that the person may no longer meet one of the 6 qualifying requirements for a deprivation of liberty authorisation.

A review should also be requested:

If a change in the person's circumstances necessitates a possible amendment to a current condition, ending a condition or setting a new condition in the current authorisation.

(pg87, 8.8) 'Deprivation of liberty can be ended before a formal review. An authorisation only permits deprivation of liberty: it does not mean that a person must be deprived of liberty where the circumstances no longer necessitate it. If a care home or hospital decides that deprivation of liberty is no longer necessary then they must end it immediately, by adjusting the care regime or implementing whatever change is appropriate. The managing authority should then apply to the supervisory body to review and, if appropriate, formally terminate the authorisation.'

The supervisory body can turn down a review if it decides that none of the qualifying requirements need to be reviewed.

The Relevant Person's representative

As soon as a standard authorisation has been given, the supervisory body must appoint a relevant person's representative to represent the person who is subject to the standard authorisation. It is the role of the best interests assessor to try to identify someone suitable to take on this role. (If the best interests assessor is not able to identify a person who is suitable and willing to take in this role, the supervisory body will appoint a Paid Representative).

The role of the Relevant Person's Representative is:

To maintain contact with the person being deprived of their liberty

To represent and support that person in all matters relating to the Deprivation of Liberty Safeguards, including, if appropriate requesting a review, using an organisation's complaints procedure on the person's behalf or making an application to the Court of Protection.

Providing independent support that is independent of the relevant person's commissioner and providers of services they are receiving.

Please see the Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice for details on who is eligible to take on this role.

The Managing Authority has a duty to record the detained person's contact with their appointed representative. If there are problems with this contact, the Managing Authority should attempt to resolve these with the representative. However, if these efforts do not resolve the difficulties, the Managing Authority must inform the Supervisory Body of the situation.

Independent Mental Capacity Advocate (IMCA)

The role of the IMCA was created under the Mental Capacity Act 2005. The IMCA is a person who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them.

The role IMCA was expanded further under the Deprivation of Liberty Safeguards:

An IMCA must be appointed if the person has no one (family member, friend or carer) to consult with other than professionals caring for them whilst being assessed for a deprivation of liberty (39A IMCA).

The relevant person and relevant person's representative have a right of access to an IMCA after a authorisation for a deprivation of liberty has been given (39DA IMCA)

The Supervisory Body must appoint an IMCA whilst there is no relevant person's representative 39C IMCA

The IMCA can refer to the supervisory body to ask for a review and can apply to take the person's case to the Court of Protection.

Unauthorised Deprivation of liberty

If the person themselves, a relative, friend, carer or any other third party (such as a professional carrying out a review or inspection or an IMCA visiting the home) believes that a person is being deprived of their liberty without the Managing Authority having applied for an authorisation, the third party should bring this to the attention of the managing authority. There is a letter available for this purpose which asks the Managing Authority to apply for an authorisation. The Managing Authority must respond within a reasonable time to the request. This would normally mean within 24 hours. If the Managing Authority is unable to resolve the issue with the concerned person quickly they should submit a request for a standard authorisation to the Supervisory Body.

If the Managing Authority does not apply for an authorisation then the concerned person can notify the Supervisory Body that they believe there is an unauthorised deprivation of liberty occurring.

If the Managing Authority receives an unauthorised deprivation of liberty notification it is advisable that they make a request for a standard authorisation and the Supervisory Body will appoint a Best Interests Assessor to determine if there is a deprivation of liberty occurring. If a deprivation of liberty is not occurring then the Supervisory Body will issue a form 13, Standard Authorisation Not Granted form.

If the Best Interests Assessor confirms that there is a deprivation of liberty occurring and it appears to be in the person's best interests then the Supervisory Body will commission all the DOLS assessments. If all the requirements of the assessments are met then a standard authorisation will be given.

If the Best Interests Assessor identifies a deprivation of liberty is occurring but it is not in the person's best interests the Supervisory Body will issue a form 13, Standard Authorisation Not Granted form. The Managing Authority will have to change the person's care plan to avoid an unauthorised deprivation of liberty.